Manufacturer’s Argument that Asbestos Not Present in Its Baby Powder Fails Due to Conflicting Expert ReportsSupreme Court of New York, New York County, November 30, 2018

NEW YORK — The plaintiff Anna Zoas sued Johnson & Johnson (J&J) alleging that her mesothelioma was caused by asbestos present in J&J Baby Powder. She allegedly used the product daily from 1945 to 1948 and regularly from 1948 to 1956. The plaintiff’s complaint was filed on May 12, 2017, and was amended on July 4, 2017. J&J then moved for summary judgment to dismiss the plaintiff’s claims.

To prevail on a summary judgment motion in New York, a defendant must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. J&J cited to the plaintiff’s expert testimony and argued that the plaintiff was not expected to present any legally sufficient and admissible evidence of exposure to asbestos. Although the court noted that a defendant cannot obtain summary judgment simply by “pointing to gaps in the plaintiffs’ proofs,” J&J nevertheless argued that they were entitled to summary judgment on the plaintiff’s strict liability claim due to a lack of causation. J&J argued that there was no asbestos contamination from their products for numerous reasons, and that its experts demonstrate that the plaintiff was not exposed to asbestos through the use of their products.

The plaintiff rebutted this argument by stating that the defense experts have not “unequivocally” established that their products could not have contributed to the causation of the plaintiff’s injury. After a thorough analysis of the opinions offered by each party’s experts, the court noted that based upon the conflicting expert opinions, the reasonable inference standard and construing the evidence in a light most favorable to the plaintiff, the motion for summary judgment should be denied.

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